Tuesday, March 31, 2015

Government Breached Plea Agreement by Using Information from Proffer to Argue for Higher Sentence

The PSR alleged 3 alleged drug transactions.Chavful plead guilty to the third: 5kg of
cocaine and 200lb of marijuana.The
first, negotiations for 10kg of cocaine and 1000lb of marijuana, Chavez argued
in his objection and at sentencing was merely the negotiation that culminated
in the third transaction.By holding him
accountable for 15kg of cocaine and 1,200lb of marijuana, Chavez argued
Probation was double counting the same transaction because they were
fact-related.Probation, and then the
Government, argued the first was a separate transaction because of the
intervening, second sale of 30kg of marijuana.Chavful disclosed the second sale during the proffer interview and
objected when the Government relied on the second sale to argue the first transaction
was a separate transaction from the third.Neither Probation nor the Government added the 30kg of marijuana to
Chavful’s relevant conduct.

The plea agreement included the Government’s promise
that “[a]ny information provided by Chavful, other than that charged in the
pending indictment, in connection with Chavful’s assistance to the United
States, including debriefing and testimony, will not be used to increase
Chavful’s Sentencing level.”The plea
agreement specifically incorporates U.S.S.G. § 1B1.8, which prohibits the use
of information obtained by the Government as part of a cooperation agreement
from being used to determine the applicable guideline range.

The panel adopts Chavful’s interpretation that the
Government cannot rely on protected information to advocate for a greater
sentence.The Government breached the
plea agreement by using protected information to advocate for a greater
sentence.The sentence was vacated and
remanded for re-sentencing.

Monday, March 30, 2015

Government Cannot Refuse to Move for Third Point of Acceptance Due to Sentencing Litigation

Castillo pled guilty to bank robbery of over
$1,000.The PSR held her accountable for
stealing $690,000 and added 14 levels to the base offense level.Castillo filed written objections, denying
that she confessed to stealing $690,000 and arguing that the evidence showed an
amount between $70,000 and $120,000, justifying only an 8-level increase.The district court held a hearing, heard
testimony, and adopted the loss amount in the PSR.The Government then refused to move for the
third point of acceptance, despite the representation in the PSR that it would
so move at the time of sentencing.The
Government argued that it had been essentially taken to the task of trial and
had not saved any resources.

The panel reviewed the language of U.S.S.G. § 3E1.1(b),
Amendment 775 (Government cannot refuse to move for the third point if the
defendant does not waive appeal), and sister circuits’ decisions.The panel found that the Government can
refuse to file a § 3E1.1(b) motion based on any interest identified in § 3E1.1(a)
or (b).Those interests, however, do not
include preparing for a sentencing hearing.

Despite those clear findings, the majority went on to
limit this holding only to good faith disputes: “[I]f the defendant has a good
faith dispute as to the accuracy of the factual findings in the PSR, it is
impermissible for the government to refuse to move for a reduction under §
3E1.1(a) simply because the defendant requests a hearing to litigate the
issue.”Since the district court did not
find that Castillo litigated the issue in good faith, the panel vacated the
sentence and remanded for determination of that fact issue.

Judge Graves concurred in part and dissented in
part.He reasoned that Castillo was
entitled to a resentencing regardless of a finding of good faith because the
plain language of § 3E1.1 focuses on trial, not sentencing, preparation as a
reason to withhold a motion for the third point.Given the plain language of the guideline, Judge
Graves argued it is unnecessary to reach the constitutional issue of a
defendant’s due process right to challenge PSR findings, which is the context
in which the Second Circuit discussed the good faith requirement.

So, continue to litigate sentencing issues (in good
faith) without fear of losing the third point of acceptance of responsibility.

Texas Aggravated Assault with Deadly Weapon Conviction Is Generic “Aggravated Assault” even though Judgment of Conviction Had No Affirmative Weapon Finding

This case involved the reliability of a judgment of
conviction to determine that Sanchez-Sanchez’s prior state conviction
constituted “aggravated assault” in the generic sense to support the 16-level
enhancement under § 2L1.2.

The parties agreed that Sanchez-Sanchez was convicted under
the Texas aggravated assault statute, Tex. Penal Code § 22.02(a).Section 22.02(a) contains offenses that are
COVs (such as assault with a deadly weapon) and ones that are not (such as
simple assault on a peace officer). Under the modified categorical approach,
the panel can rely on Shepard documents
to narrow Sanchez-Sanchez’s conviction to a specific offense under §
22.02(a).

Sanchez-Sanchez pled guilty in Texas to aggravated assault
with a deadly weapon, and the indictment alone would establish a conviction for
aggravated assault with a deadly weapon.Sanchez-Sanchez argues, however, that the judgment casts doubt on
whether he was convicted under that subsection because the judgment does not
make an affirmative finding as to the use of a deadly weapon.

The panel concludes that the judgment is not inconsistent
with the indictment because, in Texas, an “affirmative finding” that a deadly
weapon was used is significant only for the determination of whether probation
or parole can be granted.“In other
words, the failure to make such an affirmative finding relates to sentencing,
not to the underlying offense conduct.”The
panel discusses competing interpretations by lower Texas appellate courts about
the trial court’s discretion to decline to enter the affirmative finding in the
judgment, but concludes that this disagreement does not change the holdings by
the Texas Court of Criminal Appeals on which the panel relies.“The absence of an affirmative finding does
not amount to a finding that the offense did not involve a deadly weapon.”The sentence is affirmed.

Thursday, March 12, 2015

Florida Manslaughter Not § 2L1.2 COV Because Requires Less than Recklessness as to Death

The Fifth Circuit reminds us again that the name of a state conviction
is not dispositive as to whether it is a crime of violence (COV).In this case, Garcia-Perez was convicted of
illegal reentry, and the district court assessed a 16-level enhancement for his
conviction of manslaughter in Florida.

Florida manslaughter, at the time of the offense, encompassed
the “killing of a human being by the act, procurement, or culpable negligence of
another, without lawful justification….”Fla. Stat. § 782.07(1) (1995).Proof
of manslaughter does not require proof of force, so the conviction does not meet
the § 2L1.2 COV elements program.

“Manslaughter” is one of the enumerated § 2L1.2 COV offenses,
however.The generic definition of manslaughter
requires a mental state of either intent to kill or recklessness, a “conscious
disregard of perceived homicidal risk.” United States v. Bonilla, 524 F.3d 647,
654 (5th Cir. 2008).The panel reviewed
Florida case law and determined that Florida manslaughter does not require
intent to kill and that a long line of cases held that “unexpected deaths
caused by intended acts can be enough to prove manslaughter.”Indeed, the fact that a defendant could not
have reasonably believed that death was a probable result of an intentional act
does not defeat a manslaughter conviction in Florida.

Because Florida manslaughter is not limited to acts
committed with conscious disregard of a perceived risk of death, it is broader
than the definition of generic contemporary manslaughter.The district court erred by enhancing Garcia-Perez’s
offense level, and the error was not harmless.The panel vacates the sentence and remands for resentencing.

Presumed Intent to Distribute due to Quantity of Drug Does Not Make Florida Trafficking in Meth a § 2L1.2 Drug Trafficking Offense

How can an offense called trafficking in methamphetamine not
be a drug trafficking offense?Well, Florida
Statute § 893.135(1)(f) includes mere possession as a form of “trafficking”
provided the defendant possesses at least 14 grams of methamphetamine.Under the U.S. Sentencing Guidelines, though,
presumption of intent to distribute due to the possession of a certain quantity
of the drugs does not create a drug trafficking offense.United
States v. Lopez-Salas, 513 F.3d 174, 179-80 (5th Cir. 2008).

So, Florida trafficking in methamphetamine is not
categorically a drug trafficking offense.No Shepard documents narrowed
Sarabia-Martinez’s conviction to a form of trafficking other than mere
possession, and the district court plainly erred by relying on facts contained
in the Presentence Investigation Report to conclude that the conviction was for
drug distribution.The panel rejected
the Government’s argument, based on non-Shepard
documents, that the error did not work an injustice and that remand would be
improper. The panel reasoned the “facts
asserted in the ‘arrest report’ now provided by the government were never confirmed
by Sarabia-Martinez” and declined drawing “any conclusions from documents the
district court would not be permitted to consider.”The erroneous enhancement resulted in a notable
sentencing disparity, and Sarabia-Martinez had no other significant convictions
or prior reentry convictions.The
sentence was vacated and remanded for resentencing.

Updated § 2L1.2 Crime of Violence list, which includes some
drug trafficking offenses, is available on fd.org.